DA 10-0588

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 135N

ERNEST WILCOCK,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV 09-1576A

Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Ernest Wilcock, (self-represented litigant); Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Jonathan Krauss,

Assistant Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: April 27, 2011

 Decided: June 8, 2011

Filed:

__________________________________________

Clerk

June 8 2011
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Chief Justice Mike McGrath delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve 

as precedent. Its case title, cause number, and disposition shall be included in this Court’s 

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Ernest Wilcock appeals from the District Court’s order denying his petition for 

postconviction relief. We affirm.

¶3 Wilcock is serving an 80-year sentence for sexual intercourse without consent 

committed against his minor daughter, following a guilty plea entered in 1998. Wilcock 

never appealed the conviction but in 2001 and 2004 filed unsuccessful petitions for habeas 

corpus in Montana and Federal District Courts. In December, 2009, he filed the instant 

petition for postconviction relief. Wilcock alleges that in November, 2009 he learned, for 

the first time, that the date of his offense was “approximately June 1997”; that this date was 

“dramatically far removed” from the date he had been “led to believe” to be the date of his 

offense; and that he had an alibi that would establish his actual innocence.

¶4 The District Court denied Wilcock’s petition, finding that he had not met his burdens

to identify all the facts supporting the petition and to support them with actual evidence. 

Section 46-21-104(1)(c), MCA; State v. Wright, 2001 MT 282, ¶ 31, 307 Mont. 349, 42 P.3d 

753. Conclusory allegations in a petitioner’s own affidavit are insufficient to support 
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allegations of fact in a petition. Williams v. State, 2002 MT 189, ¶ 19, 311 Mont. 108, 53 

P.3d 864. 

¶5 The information charging Wilcock expressly alleged that he committed the offense in 

“approximately June 1997.” The District Court found that Wilcock’s allegation that he did 

not know the date of the alleged offense was inconsistent with the record of the case against 

him. The presentence investigation report, for example, quoted the language of the 

information that the offense occurred in “approximately June 1997” and Wilcock admits in 

his brief on appeal that he obtained the report prior to sentencing. In addition, Wilcock 

provides no facts as to the date that he was “led to believe was the date of the alleged 

offense.”

¶6 Wilcock failed to establish the facts necessary to support his petition for 

postconviction relief, and the District Court’s order denying the petition is affirmed.

¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues 

in this case are legal and are controlled by settled Montana law, which the District Court 

correctly interpreted. 

/S/ MIKE MCGRATH

We concur:

________________________________

/S/ BETH BAKER

/S/ JIM RICE

/S/ PATRICIA O. COTTER

/S/ BRIAN MORRIS